'Medicine for Melancholy' and the Art of DIY Legal Agreements

George RushMarch 3, 2009

For many narrative filmmakers, hiring a lawyer is either an afterthought or not a financial reality. But moving forward with a film without considering legal is a huge mistake. I’ve seen this unfortunate occurrence first-hand. Someone sees me with their finished film and there are no agreements for anything. No rights cleared, no crew and cast agreements. This usually means that your film has no future except as a mantelpiece. Big mistake. But what to do when you are making a micro-budget feature and you just can’t afford a lawyer? There are some good books out there that have some basic forms that are better than nothing. If you are a savvy and resourceful producer, move forward knowing that every single person that has anything to do with your film (cast and crew) needs an agreement and every piece of intellectual property (music, artwork, locations) that you do not own needs to be cleared and licensed. If you are organized and persistent, you can do it. This is dry, thankless work, probably not what you think of when you think of filmmaking, but it absolutely needs to get done.

I’ve had the privilege to be the attorney on a film called Medicine for Melancholy, directed by Barry Jenkins. It opens in San Francisco on March 6. In my opinion, it is the strongest San Francisco-based narrative film made in years, and the fact it got done on a micro-budget is a miracle. I love this film, and I absolutely love the filmmakers. It was a skeletal crew, but everyone brought the necessary skill sets to the table. This film was made on a very small budget—some of you know I have a brother who plays professional football (he just left the Raiders for the Dolphins, btw)—he could have fully financed it from a day’s work. With this sort of budget, there is no margin for error. Obviously, director Barry Jenkins, cinematographer James Laxton, and editor Nat Sanders brought their ample skills to the table to create a beautiful work. But in independent film, I always think the producer is the unsung hero. The producer is doing all the dirty work, stuck with all the responsibility, and gets a fraction of the credit that others receive. He’s the guy at the awards show where everyone is wondering who the hell he is. In this instance, that unsung hero is Justin Barber (and co-producer Cherie Saulter). I wasn’t hired on this film until they knew that they were to premiere at a major festival and had a shot at selling it, so all the legal was done by Justin.

I called him up so he could explain what he did to address legal. Justin had line-produced independent films before, so had access to some very basic crew deal memos. His crew was small, and composed of friends from the Florida State film program, so this was pretty easy. From working on others’ films, he also had an awareness that he’d need production insurance, so this was also taken care of early. The cast was primarily two SAG actors from L.A. He went through Fatna Sallak-Williams at the San Francisco SAG office. She was indispensable in walking him through the SAG agreement, and having everyone sign off on it. That took care of the cast. Justin and Cherie made sure someone at every location signed a location agreement. They were set.

Part of their team was their music supervisor, Greg O’Bryant. They knew early on that certain sequences would need to be cut to music. A micro-budget film could not afford any established acts, so they went after independent acts in the hope that it would be easier to license, and also to fit the "indie" aesthetic of the film (by the way, the music for the film is exceptional—if I’m making dinner for my wife, sometimes I’ll put the Medicine for Melancholy iMix on—instant romance!). All of the music pieces came from indie acts except one—an instrumental taken from Claire Denis’ Vendredi Soir, a major inspiration for Barry. For music, the plan was to get festival rights, and quotes on other media and that’s exactly what they did. This is a common strategy for producers. The thought being that if the film sells at a festival, the distributor pays to clear the music rights. However, as Justin said, when they were making the film, "There were huge shifts taking place in independent film as far as what films were selling for." They hadn’t broken in to that clique to know what was going on and just assumed the distributor would pay for it. There was a time when this was true, but that time has passed and distributors expect that you have cleared everything on your own dime. Ouch. It was actually after Justin read an article that I wrote in Release Print about music rights that he realized he better address this more thoroughly. I don’t know if he said that to flatter me, but glad someone got something from it, and I’m flattered.

Around this time, I became involved. The film sold to IFC and we realized we would need to renegotiate the music rights to make it more affordable given the advance they received. Justin was tireless in renegotiating these rights. A big part of music licensing is persistence—most people just can’t be bothered with a little independent producer begging for a cheap license. They’ve heard it all before. Promises of exposure usually ring hollow. They usually want money and for you to go away. If you won’t go away, a lot of musicians will empathize with your plight and work with you, but this takes time. Eventually, Justin was able to renegotiate all of the music, but one proved near impossible— Vendredi Soir, the one non-indie piece of music. We tried for months to get the French producers who owned the rights to grant a license. I had just about every French speaker I knew calling Paris begging for this license. It wasn’t that they wanted money—it just was another hassle. It literally took Barry walking into their Paris office with a license for them to address this, which they graciously did.

As part of a distribution deal, you are usually required to turn over materials such as the film, stills, and legal agreements, known as the deliverables. The bigger the distribution deal, usually the more burdensome the deliverables. Despite the fact that Medicine for Melancholy was a DIY film, the deliverables are as though it’s a huge Hollywood format. This takes a lot of time and money. Why they need both digibeta tapes and HDcam tapes, who knows, but you have to deliver them. Usually, you do not receive all of your advance until you satisfy the delivery requirements. This can create some uncomfortable chicken-and-egg situations where you can’t get your advance without delivering certain items, and you can’t deliver certain items because you don’t have your advance. Its is important when negotiating a distribution deal that you have a sense of how much it will costs to deliver your film so that you can plan accordingly.

So I asked Justin if the film’s success had translated to more success as a producer, and the verdict is mixed. "For the independent producer, you’re always at square one. With each project, you have the same challenges." However, he does feel more plugged in. "I had no idea that the festival circuit was so small. Way smaller than I thought. Once you get on it, you pretty much know everyone."

Given the challenges of independent film and all the doom and gloom naysayers currently project on it, Justin offered a nugget of wisdom that I whole heartedly concur with—"Making independent films has always been impossible. Sure there’s a lot of problems right now, but what’s one more level of impossibility? You just need to go out there and make your film."